Thursday, June 28, 2007, 1:16 PM

On the last day of the 2006-2007 term of court, the Supreme Court issued its long-awaited opinion in Leegin Creative Leather Products, Inc. v. PSKS, Inc. By a vote of 5-4, the Court held that minimum vertical price fixing is no longer per se unlawful under the Sherman Act, but rather should be analyzed under the rule of reason.

Below are the relevant portions of the Court's syllabus explaining why resale price maintenance should be governed by the rule of reason:

Because the reasons upon which Dr. Miles relied do not justify a per se rule, it is necessary to examine, in the first instance, the economic effects of vertical agreements to fix minimum resale prices and to determine whether the per se rule is nonetheless appropriate. Were this Court considering the issue as an original matter, the rule of reason, not a per se rule of unlawfullness, would be the approrpiate standard to judge vertical price restraints.

Economic literature is replete with procompetitive justifications for a manufacturer's use of resale price maintenance, and the few recent studies on the subject also cast doubt on the conclusion that the practice meets the criteria for a per se rule...

Setting minimum resale price may also have anticompetitive effects ... Thus, the potential anticompetitive consequences of vertical price restraints must not be ignored or underestimated. Notwithstanding the risks of unlawful conduct, it cannot be stated with any degree of confidence that retail price maintenance "always or almost always tend[s] to restrict competition and decrease output."...

The rule of reason is designed and used to ascertain whether transactions are anticompetitive or procompetitive. This standard principle applies to vertical price restraints. As courts gain experience with these restraints by applying the rule of reason over the course of decisions, they can establish the litigation structure to ensure the rule operates to eliminate anticompetitive restraints from the market and to provide more guidance to businesses.

The Court's opinion raises many questions. What types of resale price maintenance agreements would be unlawful under the rule of reason? There is no case law on this issue because for the last 96 years such agreements have been treated as per se unlawful. Given this uncertainty, is it still necessary to follow the Colgate doctrine?

The Court's decision also raises the academic question of when it is appropriate to overturn established precedent under stare decisis. Traditionally, long-standing decisions of statutory interpretation are not overruled because if the Court's interpretation was wrong, Congress would have amend the governing statute. In Leegin, the Court explained why it was appropriate in this case to overturn a long-standing decision of statutory interpretation:

Stare decisis does not compel continued adherence to the per se rulehere. Because the Sherman Act is treated as common-law statute, itsprohibition on "restraint[s] of trade" evolves to meet the dynamics ofpresent economic conditions. The rule of reason's case-by-case adjudicationimplements this common-law approach.... In addition, this Court has"overruled [its] precedents when subsequent cases have undermined theirdoctrinal underpinnings."... It is not surprising that the Court hasdistanced itself from Dr. Miles' rationales, for the case wasdecided not long after the Sherman Act was enacted.

In his dissent, Justice Beyer disagreed:

The Court justifies its departure from ordinary considerations of staredecisis by pointing to a set of arguments well known in the antitrustliterature for close to half a century. Congress has repeatedly found in thesearguments insufficient grounds for overturning the per se rule.And, in my view, they do not warrant the Court's now overturning sowell-established a legal precedent.